I. TRANSITIONS IN JUDICIAL SELECTION METHODS
A. From Appointment to Election
B. From Partisan to Non-Partisan Elections
C. From Non-Partisan Elections to Merit
Selection
D. Alternatives to Merit Section
II. THE CHALLENGE TO JUDICIAL INDEPENDENCE
FROM JUDICIAL ELECTION CHANGES
A. The Explosion of Large
Campaign Contributions
B. The Emergence of Special Interest
Group Participation
C. The Retreat of State Regulation of
Judicial Campaign Speech
1. The Holding of Republican Party of
Minnesota v. White
2. State Codes of Judicial Conduct
3. The Post-White World
a. Promises and Commitments by
Judicial Candidates
b. Commit Clause
c. Partisan Activity by
Judicial Candidates
d. Solicitation Clause
e. Recusal
D. The Cumulative Effect of
New Developments
III. AN OLD ANSWER SOLVES NEW PROBLEMS:
ADVANTAGES OF MERIT SELECTION OVER
CONTESTED JUDICIAL ELECTIONS
A. Turnover and Recruitment
B. Campaign Contributions
C. Enhanced Accountability
D. Merit Selection's Proven Record of Success
E. Failure of Less Ambitious Reforms
F. Philosophical Objections to the
Popular Election of Judges

America has almost as many different ways of selecting state judges
as it has states. (1) Over the past two centuries, most states have
coalesced around fairly uniform requirements, term lengths, and election
dates for executive and legislative officials. (2) But no
"consensus" method of choosing judges has developed; indeed,
each decade of the last century has brought more disparity between the
States, not less. (3)

In many states, the debate rages as fiercely as ever over whether
judges should be "appointed" or "elected,"
identified by party affiliation or prohibited from any partisan
activity, subject to a contested race for re-election or merely an
up-or-down "retention" referendum, bound by the same ethical
and electoral rules as other public officials, or treated as wholly
distinct from the political branches. Even at the federal level,
proposals for fixed judicial terms are periodically suggested,
especially for the Supreme Court, (4) and popular election of the
federal judiciary has been mooted on occasion since Jefferson. (5)

Because an equal and independent judiciary was not merely the great
original contribution of American government, but also has been that
aspect of our system most frequently emulated around the world, (6) one
would think that in America, if anywhere, a consensus on how to choose
judges would have emerged. Why has it not?

One possibility is that, although the American people and the
American States all support an overarching commitment to an equal and
independent judiciary, they disagree on what that commitment really
means. No doubt, because of the power judges hold to change public
policy through both constitutional and common-law rulings, their actions
have periodically provoked marked controversy. In current parlance, this
debate centers around whether justice is best served when courts seek a
"just" result regardless of literal text or controlling
precedent, or when judges merely apply the law as they find it,
regardless of their personal preferences or their intuition regarding
contemporary popular sentiment. For example, in the final national
television debate between John McCain and Barack Obama during the 2008
presidential campaign, Senator McCain pledged to appoint judges with
"a history of strict adherence to the Constitution" and
"not legislating from the bench," while then-Senator Obama
responded that "the most important thing in any judge is their
capacity to provide fairness and justice to the American people."
By way of example, he explained that "the kind of judge I
want" is "that if a woman is out there ... trying to support
her family, and is being treated unfairly, then the court has to stand
up, if nobody else will." (7)

Indeed, the debate over the proper nature of the judicial process,
which might be little more than an arcane professional schism in some
countries, is an integral part of public political discourse in America.
A 2008 poll showed a remarkable degree of agreement between the
respective candidates and their supporters on judicial philosophy.
According to a Rasmussen Poll released September 5, 2008, "[w]hile
82% of voters who support McCain believe the justices should rule on
what is in the Constitution, just 29% of Barack Obama's supporters
agree." (8) Conversely, "[j]ust 11% of McCain supporters say
judges should rule based on the judge's sense of fairness, while
nearly half (49%) of Obama's supporters agree." (9) Indeed,
one of the principal reasons for creating the Federalist Society a
generation ago was to elevate and sharpen this debate among the American
bar, particularly among the advocates of judicial restraint. (10) And
versions of this debate occur every year in state judicial elections and
confirmation battles, particularly for seats on state supreme courts.

But, as important as this issue is, in the past scholars have not
been able to detect any correlation between a particular selection
system and a particular judicial philosophy. No doubt, a snapshot of a
particular time or place might reveal instances where "most
appointed judges are liberal" or "elected judges are
activist," but these isolated observations have not, taken as a
whole, produced a consistent pattern. (11)

Nonetheless, a distinct pattern may now be emerging. Some recent
studies suggest that contested elections produce judges with less
institutional independence and more result-oriented jurisprudence. (12)
Recent developments in the conduct of judicial elections might produce
more pronounced differences in judicial behavior based on the way judges
obtain and retain their benches.

I. TRANSITIONS IN JUDICIAL SELECTION METHODS

The wide disparity in judicial selection systems can be explained
largely by history. The type of system a state has depends largely on
the date it adopted that system. Each successive wave of judicial
selection methods has arisen in response to popular clamour for more
professional, less political judges.

A. From Appointment to Election

In the original states, judges were chosen in one of two ways: by
the executive--appointment either by the governor himself or the
governor's council--or by the legislature. (13) None of the
original states seriously considered popular judicial elections,
although isolated jurisdictions did experiment with elective judges at
some levels. (14)

Between 1846 and the outbreak of the Civil War, however, more than
two-thirds of the states moved to an elective judiciary at all levels of
courts. (15) What caused such a rapid change? There are at least three
reasonable explanations.

First, judicial decisions favoring landlords and creditors in the
wake of the 1819 and 1837 Panics caused outrage in many states and
structural alterations in some. (16) Popular elections were perhaps a
delayed reaction to these unpopular rulings, although little in
constitutional convention debates or other historical records suggests
such a relationship.

Second, the watchword of Jacksonian Democracy, "Let the People
Rule," (17) led to a dramatic expansion of suffrage (18) and a
marked increase in the variety of officials chosen directly by the
voters. For example, in addition to judicial elections, many states and
municipalities abandoned a cabinet type of executive government in favor
of individually elected department heads. (19) As one exasperated
delegate to the Kentucky constitutional convention complained, "We
have provided for the popular election of every public officer save the
dog catcher, and if the dogs could vote, we should have that as
well." (20) That the movement started with the New York constitutional convention of 1846, dominated by Jacksonian acolytes,
lends credence to this theory. (21) If true, the change was not so much
a philosophical reaction to particular judges or particular decisions as
it was a logical result of an underlying philosophy of government.

A third reason, emphasized by some scholars as the most decisive,
was a pervasive belief by leading lawyers that both governors and
legislators had degraded the bench by appointing partisan hacks and
political cronies. (22) Under this theory, political reformers and legal
elites combined to elevate the independence, integrity, and importance
of the judiciary by eliminating their dependence on the good graces of
the political branches. Enhanced public accountability, if a factor at
all, was little more than an incidental by-product. (23)

B. From Partisan to Non-Partisan Elections

Popular elections seem to have worked well at first. Because each
state had only a handful of judges, voters were capable of evaluating
all the candidates, often from personal knowledge. Running for office
required little preparation or even premeditation: There were no filing
fees or deadlines, and no official ballots. (24) Campaigning was almost
as simple--at most, it involved penning a few letters to the editor and
"treating" thirsty voters to adult beverages. (25)

Population growth, changes in electoral processes, and the rise of
party organizations soon rendered the old "friends and
neighbors" system of high-salience judicial elections obsolete. In
urban centers, voters chose multiple judges from among candidates they
did not know. Detailed election regulations increased the length and
expense of campaigns. And political parties began endorsing and even
selecting judicial candidates. (26) Partisanship and anonymity caused
the defeat of several renowned jurists in the late nineteenth century,
most notably Thomas Cooley in Michigan. (27) By the end of the
nineteenth century, a popular outcry arose against the bench being
populated by--deja vu all over again--partisan hacks and political
cronies. This sentiment was most memorably captured in Roscoe
Pound's famous warning to the 1906 meeting of the American Bar
Association that "[p]utting courts into politics, and compelling
judges to become politicians, in many jurisdictions has almost destroyed
the traditional respect for the Bench." (28)

Judicial reform was a priority of the Progressive Movement. (29)
Some Progressive enthusiasms, like the recall of judicial decisions or
judges themselves, failed to carry the day. (30) Others, such as
requiring an extraordinary majority for a court to declare a statute
unconstitutional, survive in a few jurisdictions. (31) But nonpartisan
judicial elections, perhaps the least ambitious item on the Progressive
judicial agenda, survive in a number of states. (32) At last, the
reformers believed, judges would be both independent and accountable.

C. From Non-Partisan Elections to Merit Selection

But non-partisan elections had their own disadvantages. An absence
of political affiliation meant virtual public anonymity. With no
partisan cue on the ballot, and no partisan apparatus to help build a
grassroots campaign, judges had few practical means to reach a generally
apathetic electorate. (33) All too often, a familiar name trumped
education, experience, and establishment support at the polls. (34)

The most widespread response to these problems was a hybrid plan
known as "merit selection." Originally advanced by Albert
Kales of the American Judicature Society in 1914, (35) the method was
first adopted by Missouri in 1940 for statewide and selected urban
courts. (36) The "merit selection" or "Missouri
Plan" attempts to emphasize the best and minimize the worst of all
existing judicial selection methods. (37) When a vacancy arises, a
select but diverse committee screens potential nominees and sends
several names to the governor. (38) In most states, the governor must
choose a judge from this list, sometimes with an option to request
alternative or additional names. In some states, the appointee takes
office immediately; in others, confirmation by the governor's
council or the legislature is required. (39) At the end of each term,
every judge runs against his own record in a "retention"
election. (40) A judge who receives more "yes" than
"no" votes stays in office. If the judge dies, resigns,
declines to stand again, or receives more "no" than
"yes" votes, the process starts anew. (41)

Beginning in the 1950s, primarily in the course of adopting new
constitutions, eighteen states adopted merit selection plans for most or
all of their judgeships. (42) Other states seemed on the verge of
adopting this reform, and it looked as though it would sweep the nation
just as surely as contested elections had a century before. At last,
seemingly to general approbation, the nation's cadre of state
judges appeared ready to be more professional and less political than
ever before.

D. Alternatives to Merit Section

But several events, largely unrelated to judicial performance,
converged to halt the spread of merit selection. First, increasing
controversy over single issues like abortion or right-to-work made
constitutional conventions increasingly fractious, and hence
increasingly uncommon. (43) Even if neither legislators nor voters were
particularly satisfied with their courts, they were not sufficiently
concerned to enact a separate, stand-alone constitutional amendment.
(44) Second, beginning in the 1960s, the Kennedy Assassination, the
Vietnam War, Watergate, and various social and demographic changes
caused a marked decline in public confidence in public and private
institutions. This cynicism made merit selection vulnerable to populist
appeals like, "Don't let them take away your vote."
Third, the reality of the merit system sometimes fell short of its
promise. The supposedly independent and high-minded merit commissions
were subject to regulatory capture, most often by the Governor 45 or a
faction of the bar. (46) Fourth, as state courts decided ever-larger
business and personal injury cases and became more enmeshed in
controversial social issues, those with a vested interest in any
particular status quo became vigorous and committed opponents of change.
(47) Taken together, these factors essentially halted the trend to merit
selection by the mid-1980s. (48)

This is not to say that judicial selection is completely static. In
the last three decades, about half the Southern states have switched
from partisan to non-partisan elections, (49) for political as well as
good-government motives. (50) Some jurisdictions-several Southern states
and Cook County, Illinois--have also switched from at-large to
sub-district elections for urban trial court judgeships, prodded by
challenges under Sections 2 and 5 of the Voting Rights Act. (51)
Finally, two states--North Carolina and New Mexico--have recently
experimented with public financing schemes for appellate courts. (52)
But, despite the controversy surrounding judges and their selection,
little else has been done. Most of the country is, therefore, in an
unfortunate period of dissatisfied stasis: People are not particularly
pleased with their current method of choosing judges, but they are not
sufficiently outraged to demand any change. (53)

II. THE CHALLENGE TO JUDICIAL INDEPENDENCE FROM JUDICIAL ELECTION
CHANGES

Today, judicial elections suffer from new, unprecedented
challenges. The common denominators are campaign money and
special-interest agitation, making judicial elections "nastier,
noisier, and costlier" than ever before. (54) These new,
high-octane campaigns threaten judicial independence as surely as
mediocre appointments in the nineteenth century or anonymous elections
in the twentieth century ever did. (55) The more partisan, the more
frequent, and the more easily contestable the elections are, the more
susceptible they are to these unfortunate influences.

Why the sudden interest in judicial elections, long seen as
"about as exciting as a game of checkers ... [p]layed by
mail"? (56) Three factors seem to predominate.

A. The Explosion of Large Campaign Contributions

First, wealthy individuals and groups with economic interests in
various public policy questions realized that an individual judge can
have a far greater impact on their fortunes than an individual
legislator. Although judges face far more constraints in basing their
official actions on their personal philosophical predilections than do
legislators, few would insist that personal philosophies never affect
judicial behavior. Personal injury trial lawyers in Texas were probably
the first to discover that increased gifts to judicial campaigns could
make a big difference in electoral outcomes, and pay big dividends in
more favorable judgments. By Business and professional groups countered
by supporting their own judicial candidates, especially after state
courts invalidated key tort reform laws. (58) These battles were swiftly
replicated in other states, particularly California and Alabama. (59) By
2000, these local battles had essentially been nationalized, with
national trial lawyer and consumer groups battling business-oriented
groups in multiple jurisdictions each election cycle. (60) Increasingly,
these groups tried to influence the vote through independent
expenditures, largely eschewing the candidates' individual
campaigns. (61) The advertisements purchased by these groups often
feature "slash and burn" messages crafted to trigger a vote
against a candidate or slate of candidates, not to enhance support for
anyone or anything. (62) Such potent phrases and images often
overwhelmed the candidates' own messages, which touted boring
factoids involving qualifications, experience, and community ties.
Perversely, many of these independent campaigns feature dueling charges
over which candidate's record is the most "soft on
crime," even though the funders themselves care only about civil
jurisprudence. (63)

B. The Emergence of Special Interest Group Participation

Second, politically-oriented social-issue groups have discovered
that judicial campaigns can highlight "hot-button" issues that
may excite and energize their "base" and enhance turnout for
the entire election. As in the tort wars, most of these groups rely on
independent efforts, working outside any candidate's particular
campaign organization. Normally, they rely less on paid media than on
grassroots networking, which can be hard for an outsider even to detect,
much less to respond to effectively. Chief Justice Randall Shepard of
Indiana noted that the presence of a gay marriage ban on the ballot
inadvertently affected Ohio's judicial elections by influencing
which voters showed up at the polls. He explained that when such issues
are at the forefront, "judges are not the target at all, we're
just roadkill ... for some other venture." (64)

C. The Retreat of State Regulation of Judicial Campaign Speech

1. The Holding of Republican Party of Minnesota v. White Third, the
landscape of judicial races changed abruptly in 2002 when the United
States Supreme Court derided Republican Party of Minnesota v. White.
(65) The derision was itself unremarkable, merely striking down an
isolated, obscure section of the Minnesota Code of Judicial Conduct which stated that a "candidate for a judicial office, including an
incumbent judge[,] ... shall not ... with respect to cases,
controversies or issues that are likely to come before the court, make
pledges or promises that are inconsistent with the impartial performance
of the adjudicative duties of the office." (66) Although the
holding--that because the Announce Clause applied to speech only in a
campaign context it was too underinclusive to survive strict scrutiny (67)--was quite narrow, portions of the Court's discussion en route
to that holding seem dismissive of the entire conduct code regime.

2. State Codes of Judicial Conduct

Judicial codes of conduct are hardly a rash or novel experiment.
For many years, states have regulated the balance between judicial
independence and public accountability through these codes, generally
promulgated through the exercise of inherent power by the state's
highest court. (68) Most of the codes derive from a common source: the
American Bar Association's Model Code of Judicial Conduct. (69)
First promulgated in 1972, (70) then reissued in 1990 and revised
several times since, (71) the Model Code contains several provisions
constraining the speech and conduct of judges. (72) Through lawyer
disciplinary rules, these restrictions generally extend to judicial
candidates as well. (73) For the bench and bar as a whole, however, it
was simply an article of faith, perhaps not too closely examined, that
the state's interest in a fair and impartial judiciary was
sufficiently compelling to justify virtually any such restriction. But
not everyone agreed, as suits from time to time challenged code
provisions as violating the First Amendment. These cases met with mixed
results, until White caused a paradigm shift in the debate.

3. The Post-White World

After White, new challenges to other code provisions have arisen.
At least five distinct challenges have cast some doubt on the viability
of any state regulation of judicial campaign behavior.

a. Promises and Commitments by Judicial Candidates

Several federal district courts have enjoined enforcement of the
so-called Pledges or Promises Clause, which forbids judicial candidates
from making "pledges or promises of conduct in office other than
the faithful and impartial performance of the duties of the
office." (74) Although some decisions have upheld the clause, (75)
or at least postponed resolving the issue, (76) candidates in the
affected states can no longer point to the code in dismissing questions
about their prospective behavior as the judge. Unlike the Announce
Clause, the Pledges or Promises Clause has been included in most
states' codes of judicial conduct.

b. Commit Clause

Another common canon that has been subject to repeated successful
attack is the Commit Clause, which provides that judicial candidates
shall not "make statements that commit or appear to commit the
candidate with respect to cases, controversies or issues that are likely
to come before the court." (77) Several federal courts have
enjoined enforcement of the canon, (78) although some courts have
declined to enjoin its enforcement. (79) Some have dismissed complaints
for lack of standing. (80) Armed with those decisions holding that
candidates and voters alike have a First Amendment right to discuss
issues, inquiring minds among the press, political parties, special
interests, and the voting public are pressing for specific answers to
pointed questions about performance in office. Some groups now send
identical questionnaires to both judicial candidates and aspirants for
executive or legislative office. (81) For example, gun rights groups
might now ask judges directly "Do you believe that the Second
Amendment prohibits any restrictions on handgun ownership?" rather
than posing indirect "attitudinal" questions such as "How
many deer heads are mounted in your den?" or "How many times
did you take your children to the shooting range last month?"

c. Partisan Activity by Judicial Candidates

Third, the safeguards installed in certain states to keep contested
or retention elections truly non-partisan have been compromised by the
circuit opinion on remand in White. It held that the First Amendment
permits judicial candidates to claim party affiliation, to attend
political gatherings, and to seek, accept, and advertise endorsements
from partisan organizations. (82) The experiences of Michigan and Ohio,
where parties dominate the nominations of and campaigns for technically
non-partisan candidates, may become the norm in those states which have
chosen non-partisan ballots because they believe that party interference
compromises both the appearance and reality of judicial impartiality.

d. Solicitation Clause

Fourth, the traditional boundaries between judicial candidates and
their financial supporters have been weakened or eradicated by the
decisions of two federal circuit courts. Until recently, all but a
handful of states prohibited judicial candidates from personally
soliciting or accepting contributions from donors, instead requiring
them to raise funds through campaign committees. (83) On remand in
White, the Eighth Circuit held that Minnesota's Solicitation Clause
was unconstitutional with regard to solicitations to "large
groups." (84) Several years earlier, the Eleventh Circuit on its
own motion struck down Georgia's Solicitation Clause in its
entirety. (85) The personal contact between candidate and donor clearly
changes the dynamic of a judicial campaign, making it more like any
other electoral campaign, and thus enhancing the possibility that the
public will perceive justice as being influenced by contributions.

e. Recusal

Finally, a number of challenges have been brought to state recusal
rules that require judges to step aside from cases when they have, for
example, made pledges or promises, committed to a position on an issue,
affiliated with a party, or solicited from a donor such that "in
any proceeding ... the judge's impartiality might reasonably be
questioned." (86) To date, only one court has enjoined such a
recusal provision. In Duwe v. Alexander, the federal district court held
that Wisconsin's recusal provision was unconstitutionally overbroad
and vague in providing that:

[A] judge shall recuse himself or herself in a proceeding when ...
the judge, while a judge or a candidate for judicial office, has
made a public statement that commits, or appears to commit, the
judge with respect to any of the following: 1. An issue in the
proceeding. 2. The controversy in the proceeding. (87)

The court reached this holding despite Justice Kennedy's
suggestion in White that states were free to "adopt recusal
standards more rigorous than due process requires, and censure judges
who violate these standards." (88)

D. The Cumulative Effect of New Developments

One should not overstate the impact of large contributors, special
interest groups, or White and its progeny on judicial election behavior.
Many states still have quiet elections, or at least their highly-charged
campaigns have been limited to those for their highest courts. Most
candidates have moved cautiously, if at all, away from the old Marquis
of Queensbury rules of decorum. (89) But the big money, hot-button
issue, post-White campaign landscape certainly facilitates a "race
to the bottom" mentality in closely contested races. When large
contributors make huge media buys, or interest groups bring their
organizational talents to judicial campaigns, many candidates and their
supporters find it hard to behave with perfect equanimity. (90) Bitter,
nasty races have occurred often enough to raise serious concerns among
many who believe the judiciary's traditional norms of behavior have
contributed to the widespread, longstanding support for the role of law
and the judicial branch in America. (91) If future elections continue to
reinforce the idea that judges are mere political players, very serious
consequences could ensue: The basic notion that we are a nation of laws,
interpreted and applied by judges but ultimately made by the people
themselves through the democratic instruments (constitutions and ballot
propositions), by their chosen representatives (statutes and executive
orders), by their representatives' agents (rules and regulations),
or by a formal and highly structured process of gradual accretion
(common law), would sustain a terrible blow. (92)

III. AN OLD ANSWER SOLVES NEW PROBLEMS: ADVANTAGES OF MERIT
SELECTION OVER CONTESTED JUDICIAL ELECTIONS

In view of all these developments, a profound pessimism might seem
to be in order. After all, big-dollar, high stakes judicial politics is
no respecter of systems; it has affected states choosing judges in
straight partisan elections (for example, Alabama and Texas), initial
partisan elections with retention re-elections (Illinois and
Pennsylvania), pure non-partisan elections (for example, Washington and
Wisconsin), non-partisan elections with candidates selected by political
parties (Michigan and Ohio), gubernatorial appointment with retention
election systems (California appellate courts), pure merit selection
systems (Tennessee Supreme Court), and even legislative elections (South
Carolina).

In the face of all these problems, old and new, the Missouri merit
selection plan, for all its flaws, is the best option for maintaining
dignity, stability, and accountability in the judiciary. In theory,
merit selection should produce more judges who will respect their proper
role in the governmental process. In practice, merit selection has
worked well most of the time in most places. Taken together, these
benefits should be sufficient to command support from the bench, the
bar, and a concerned public in general, and from the active and informed
lawyers who belong to the Federalist Society in particular.

Much of merit selection's appeal lies in the defects that
inhere in other systems, particularly given the new pressures discussed
above. These problems are especially endemic in contested elections.

A. Turnover and Recruitment

Contestable election systems undercut the stability of the
judiciary.

The concern about partisan sweeps that caused reformers to push for
non-partisan elections more than a century ago is an even bigger problem
today. In Texas, for example, well over one third of all opposed judges
have been defeated since 1980, generally because of straight-ticket
voting. (93) But the extremely low salience of non-partisan judicial
election contests make them little better. A person with an unusual name
probably has a better chance of being elected President of the United
States than state judge on an urban non-partisan ballot. (94) The
retention rate for judges in merit systems, in contrast, has been
remarkably stable--and consistently high--over many decades in many
different states. (95)

Moreover, the occasional "no" victories in retention
elections typically follow a scandal or widespread disgust with a
judge's perceived judicial philosophy. Interestingly, no state
supreme court justice in America has ever been defeated in a retention
election because he or she was perceived as too conservative, too
closely aligned with big business, too devoted to precedent, or too
faithful to the literal words of a constitution, statute, or rule. To
the contrary, all seven supreme court justices rejected in retention
elections lost because they were perceived--rightly or wrongly--as too
liberal, (96) because they wrote an unpopular opinion, (97) or because
of voter outrage over state government in general. (98) Although few
would defend all these outcomes as admirable or fair, they were
rational, not random-which is all an electoral system can hope to
achieve.

One criticism of merit selection has been that too many undesirable
judges are retained because voter ignorance or voter apathy permits all
but the very worst judges to retain their jobs. Many merit selection
states have recognized this problem, however, and are initiating new and
more rigorous judicial evaluation programs to give voters a
comprehensive picture of each judge's performance in office. (99)
When voters have access to this information, interested voters have a
much better chance of casting an intelligent vote in a yes-or-no
election than in an open race among two or more names on a ballot. If
the public does its job, good judges will stay in office and bad judges
will go.

B. Campaign Contributions

Retention campaigns also have the advantage of being neither as
nasty nor as expensive as contested campaigns. The exceptions are few
and well-known: The 1986 defeats of three California Supreme Court
justices remain, after more than two decades, by far the most expensive
and notorious retention election battles. The rapid escalation of
multi-million dollar races in states with contested elections has simply
not occurred in retention election campaigns. (100)

By contrast, the lamentable public perception of a justice system
selected by high-dollar, contested elections is well documented. (101)
Although I am convinced that most judges are never influenced, at least
consciously, by contributions, I do recognize the inevitable problem of
persuading the public otherwise. Mayor Fiorello LaGuardia is said to
have explained that contributions never influenced his conduct because
"I'm an ingrate." But, unlike the Little Flower, state
judges seldom enjoy a platform to convince the public at large of their
personal rectitude. Instead, defeated political parties, disappointed
interest groups, and press reports all feed on natural suspicions that
the recipients of substantial campaign contributions must be beholden to
somebody. (102) It is hard to persuade a losing litigant whose opponent
gave a lot of money to the judge that his or her case was resolved
solely on the merits. For our system to thrive, justice must seem to be
done, as well as actually be done. (103)

This natural suspicion is exacerbated when big donors, like trial
lawyers and business associations, fund "scholarly" studies
showing that judges they do not support have been "bought off"
by their opponents' contributions. (104) In short, these big donors
either win the election or they lose the election and begin a press
battle to undermine the authority of those who prevailed. The result is
a perceptible decline in public confidence. (105)

C. Enhanced Accountability

Contrary to popular belief, merit selection enhances the judicial
accountability that elections are supposed to achieve. Opponents of
merit selection have done well with the populist cry, "Don't
let them take away your vote!" This hits the right emotional
buttons, but it makes little rational sense. Perhaps because the age,
educational, and professional requirements for serving as a judge are so
stringent, far fewer judicial races are contested than are races for
political office. (106) Whether a judge draws opposition seems to depend
not so much on the judge's performance in office as on the
likelihood that he or she can be defeated, either because of an
unpopular party label or an unfortunate ballot name. Some ostensibly "elected" judges have never drawn an opponent, having been
initially appointed to fill an unexpired term and then having run
unopposed for each succeeding term. (107) These statistics seem more
likely to have come from a Middle Eastern oligarchy than from the
birthplace of popular sovereignty.

In contrast to the hit-or-miss reality of contestable elections,
the powerful truth of merit selection is that every judge will be
subject to the vote of every voter. If, as election enthusiasts
maintain, the campaign itself makes judges more courteous, punctual, or
humble, then the retention election seems designed to improve the
performance of every judge--not only those who draw an opponent in
contested elections.

D. Merit Selection's Proven Record of Success

The proof of merit selection's success is that the people have
never repealed merit selection in any state or part of a state where
they have ever adopted it, although one state is now in the process of
allowing it to expire. (108) Efforts have been mounted in Missouri,
Arizona, Colorado, and elsewhere, with no success. (109) In fact, in
2008 voters extended merit selection in Missouri to another county.
(110)

E. Failure of Less Ambitious Reforms

Efforts to cure the defects of contested elections while preserving
the system have generally been as bad as the disease. Single-member
judicial electoral districts may shrink the size of the ballot, but they
make judges seem more like ward-heelers and less like learned dispensers
of impartial justice. (111) Contribution limits may curb some of the
worst excesses, but they need to be carefully calibrated if they are to
achieve a positive effect. If they are too high, they will merely breed
public cynicism. If they are too low, they will either result in an even
more uninformed electorate, or they will drive more contributions to
independent groups. And public funding, which logically should represent
the next "wave" of reform after merit selection, (112) has
attracted only isolated support for judicial contests. (113)

F. Philosophical Objections to the Popular Election of Judges

Perhaps the biggest concern with judicial elections is how the
electoral process itself influences the successful candidate. (114) When
a judge is elected on the same ballot, by the same means, and under the
same rules as a candidate for Congress or city council, might not the
judge begin to think like a political official? (115) Might not he
regard his supporters as his constituents, his campaign rhetoric as his
platform, and his party leaders as his allies? (116) Might not such a
judge, as a seasoned veteran of the campaign trail, think he or she
understands the pressing problems of the hour and the public policy
solutions better than some legislator from a single, isolated district?

A system that treats judges differently from other officials helps
remind both the public and the judges that they do something very
different. A system that encourages good judges to stay and encourages
bad judges to go serves all of us well. And a system that lets judges
spend most of their time on the bench or in the library, rather than
dialing for dollars or riding in parades, delivers justice more
efficiently. Right now, the Missouri Plan could best meet those needs in
most of our states.

Some say that merit selection is just a poor cousin to the real
reform of purely appointed judges. But only a few Eastern states, plus
Hawaii, have genuine appointive systems. (117) I do not think the States
are going to embrace purely appointed judges, for reasons of history, if
for nothing else. Moreover, the one appointive system with which every
American is familiar--the federal system--has not inspired much
confidence in recent decades. Certainly lifetime judges are insulated
from campaign contributions and partisan sweeps, but the federal
appointment and confirmation process has its own significant problems.
Not only have recent Administrations come under increasing pressure to
appoint men and women whose performance in office can be
"safely" predicted, but some recent Senate confirmation
battles have been as nasty and as misleading as any election contest.
For example, one senator voted against confirming Chief Justice Roberts
because he declined to answer questions about a particular legal issue
"as a son, a husband, a father" and because he declined to
commit to a particular vote if another issue were to come before the
Court. (118) Supporters and opponents have run multi-million dollar
media campaigns to support or oppose confirmation of Supreme Court and
even circuit nominees. (119)

Like it or not, the central role of the judicial system is not
going to wither away, or even recede. As George F. Will observed,
"As traditional sources of social norms--families, schools,
churches--weaken, law seeps into the vacuum." (120) Courts may have
lost some of their autonomy in devising the common law, (121) but they
are more involved than ever before in the real problems of real people,
such as child education and welfare, (122) employment discrimination,
(123) marriage, (124) students' (125) and prisoners' rights,
(126) and so on. As advances in information and biological technology
raise new issues of personal privacy, personal autonomy, and perhaps
even what it means to be a human being, the courts will be even more
significant in every American's life.

Our courts are simply too important to be left to benign neglect.
As future leaders of the bar, your ideas on how judges are selected, and
how they perform once in office, will be heard and respected. If, in the
course of your professional careers, you can give the American people a
better judicial system, you will have, in your own way, "[l]ived
greatly in the law." (127)

(2.) See, e.g., Project Vote Smart, General Information About the
Governors' Offices, http://www.votesmart.org/pdf/govtable.pdf (last
visited Dec. 14, 2008) (demonstrating almost uniform four-year terms for
state governors with a majority of states imposing a limit of two
consecutive terms). The one modern change to popular-branch elections
has been the adoption in recent decades of term limits for legislators
and executive officials in many states. Interestingly enough, only in
Nevada was there a serious proposal to extend this reform to the
judiciary: In the 1996 general election, voters imposed term limits on
state and local officials, but by a separate vote declined to impose
them on the judiciary. NEV. ASS'N OF COUNTIES, TERM LIMITS AND
NEVADA: A BRIEF HISTORY OF TERM LIMITS AND THEIR APPROACHING IMPACT TO
GOVERNMENT IN NEVADA 12, available at
http://www.nvnaco.org/pdf_files/termlimits.pdf.

(5.) See Letter from Thomas Jefferson to Samuel Kercheval (June 12,
1816) ("It has been thought that the people are not competent
electors of judges learned in the law. But I do not know that this is
true...."), available at http://www.teachingamericanhistory.org/
library/index.asp?document=459.

(6.) See William Rehnquist, U.S. Chief Justice, Remarks at American
University's Washington College of Law (Apr. 9, 1996), available at
http://www.law.cornell.edu/ supct/justices/rehnau96.htm.

(10.) See The Federalist Society for Law and Public Policy Studies,
About Us, http://www.fed-soc.org/aboutus/(last visited Oct. 5, 2008)
(stating that "The Federalist Society ... is founded on the
principle[] ... that it is emphatically the province and duty of the
judiciary to say what the law is, not what it should be.").

(12.) See David E. Pozen, The Irony of Judicial Elections, 108
COLUM. L. REV. 265, 287-88 (2008) (discussing research finding that
elective judges favor in-state litigants, are more likely to rule in
ways that are consistent with public opinion, and become more punitive
in criminal cases as reelection approaches). Pozen also argues that
"elected state supreme courts are associated with lower overall
rates of litigation than appointed ones (the theory being that appointed
judges' greater political independence generates more uncertainty
about litigation outcomes)." Id. at 288-89 (citing F. Andrew
Hanssen, The Effect of Judicial Institutions on Uncertainty and the Rate
of Litigation: The Election Versus Appointment of State Judges, 28 J.
LEGAL STUD. 205, 232 (1999)).

(13.) See Goldschmidt, supra note 11, at 5 & n.6.

(14.) Vermont, admitted to the Union in 1791, was the first state
to provide for the election of some lower court judges. See ROGER K.
WARREN, STATE JUDICIAL ELECTIONS: THE POLITIZATION OF AMERICA'S
COURTS 3 (2006). In 1810, Georgia made "justices of the inferior
courts and justices of the peace" elective. FLETCHER M. GREEN,
CONSTITUTIONAL DEVELOPMENT IN THE SOUTH ATLANTIC STATES, 1776-1860, at
202 (1930). In 1832, Mississippi became the first state to elect its
entire judiciary. ALLAN ASHMAN & JAMES J. ALFINI, THE KEY TO
JUDICIAL MERIT SELECTION: THE NOMINATING PROCESS 9 (1974).

(15.) See Larry C. Berkson, Judicial selection in the United
States: A special report, 64 JUDICATURE 176, 176 (1980) ("By the
time of the Civil War, 24 of 34 states had established an elected
judiciary with seven states adopting the system in 1850 alone.").

(16.) In Kentucky, the legislature responded to the state
constitution's prohibition on the removal of judges for less than
criminal activity by repealing the act that created the Court of
Appeals. The legislature then created a new court with different
members. See 5 JOHN BACH MCMASTER, A HISTORY OF THE PEOPLE OF THE UNITED
STATES: FROM THE REVOLUTION TO THE CIVIL WAR 162-66 (1901). The new
court, however, was short-lived. See id. at 166. In Alabama, as a result
of the supreme court's unpopular decision in Jones v. Watkins, 1
Stew. 81 (Ala. 1827) (holding that borrowers could not avoid a contract
they signed voluntarily, high interest rate was not per se evidence of
fraud, and statute of limitations barred suit), three of the
court's judges were charged and tried before the Alabama Senate
under the state constitution's removal-by-address provision, which
provided that "judges could be removed for 'wilful [sic]
neglect of duty, or other reasonable cause' even though the grounds
were not sufficient for impeachment." Howard P. Walthall, Sr., A
Doubtful Mind: Understanding Alabama's State Constitution, 35 CUMB.
L. REV. 7, 29 (2005) (alteration in original) (quoting ALA. CONST. of
1819, art. V, Judicial Department [section] 13). Although the judges
were exonerated, the state soon thereafter adopted an amendment to the
constitution reducing judicial terms to six years. See id.

(17.) See WILLIS MASON WEST, THE STORY OF AMERICAN DEMOCRACY:
POLITICAL AND INDUSTRIAL 454 (1922).

(18.) See Pamela S. Karlan, Ballots and Bullets: The Exceptional
History of the Right to Vote, 71 U. CIN. L. REV. 1345, 1348-52 (2003)
(discussing, in particular, black enfranchisement and absentee voting,
and effects thereof).

(19.) See George W. Liebmann, The New American Local Government, 34
URB. LAW. 93, 108 (2002) (stating that by "1954, 356 cities
operated under this plan") (citing HAROLD F. ALDERFER, AMERICAN
LOCAL GOVERNMENT AND ADMINISTRATION 296-98 (1956) and MANAGEMENT
POLICIES IN LOCAL GOVERNMENT FINANCE 4 (J. Richard Aronson & Eli
Schwartz, eds., 4th ed. 1996)); Caleb Nelson, A Re-Evaluation of
Scholarly Explanations for the Rise of the Elective Judiciary in
Antebellum America, 37 AM. J. LEGAL HIST. 190, 207 (1993).

(20.) Nelson, supra note 19, at 207 (citing Kermit L. Hall, The
Judiciary on Trial: State Constitutional Reform and the Rise of an
Elected Judiciary, 1846-1860, 45 HISTORIAN 340-41 (1983)).

(23.) See id. at 659-60 (stating that judicial elections were
chosen "to elevate the judiciary and make it more independent of
other branches so that it could better render justice"). But see,
e.g., Glenn R. Winters, Selection of Judges--An Historical Introduction,
44 TEX. L. REV. 1081, 1082 (1966) (arguing that judicial elections were
"not particularly designed for improving justice but [were] simply
another manifestation of the populism movement").

(24.) In most states, voters in the nineteenth century voted by
ballot, but in a few the voting was oral--so-called viva voce voting.
See 1 CHARLES SEYMOUR & DONALD PAIGE FRARY, HOW THE WORLD VOTES: THE
STORY OF DEMOCRATIC DEVELOPMENT IN ELECTIONS 246-47 (1918). But this was
not a modern ballot; it was "a motley variety" of printed or
written papers, prepared by political parties, candidates, or individual
voters, with "no rule for the size and color of the ballot."
Id. at 247. The "Australian," or official printed ballot, was
not adopted anywhere in America until 1888, TRACY CAMPBELL, DELWER THE
VOTE: A HISTORY OF ELECTION FRAUD, AN AMERICAN POLITICAL
TRADITION--1742-2004, at 97, 115 (2005), but by 1892 it had spread to
thirty-two states. See id. at 96-97; 1 SEYMOUR & FRARY, supra, at
250.

(26.) See Nathan Richard Wildermann, Casenote, Bought Elections:
Republican Party of Minnesota v. White, 11 GEO. MASON L. REV. 765, 767
(2003) (noting early control of judicial elections by political
parties). In Texas, for example, the State Democratic Convention began
endorsing state's rights candidates as political philosophies
hardened. Sam Houston, the leading opponent of the Democratic
establishment in Texas, said of the State Democratic Chair: "[O]ne
drop of his blood would freeze a frog." A.W. Terrell, Recollections
of General Sam Houston, 16 SW. HIST. Q. 113, 120 (1912).

(29.) See Barry Friedman, The History of the Countermajoritarian
Difficulty, Part Three: The Lesson of Lochner, 76 N.Y.U.L. REV. 1383,
1393-94 (2001).

(30.) See From Arizona to New York, N.Y. TIMES, Feb. 12, 1911, at
10 (discussing a "concerted effort" to put a recall provision
into the constitution of New York, but noting that "[w]e do not
expect that the recall device will be put into the Constitution');
President Vetoes the Statehood Bill, N.Y. TIMES, Aug. 16, 1911, at 3
(discussing President Taft's veto of the bill to make Arizona a
state as a result of its "pernicious" constitutional provision
allowing judicial recall). Nevertheless, Arizona reinserted the
provision after receiving statehood. See ARIZ. CONST. art. 8, pt. 1,
[section] 1.

(34.) See Luke Bierman, Beyond Merit Selection, 29 FORDHAM URB.
L.J. 851, 854 (2002) (noting that name recognition was "hardly
better than party affiliation as an indicator of a judge's
qualifications for office"). For example, in 1990, Washington Chief
Justice Keith Callow lost to attorney Charles Johnson, who shared his
name with a television anchor. See Robb London, For Want of Recognition,
Chief Justice is Ousted, N.Y. TIMES, Sept. 28, 1990, at B16; Steve
Miletich, Johnson and Smith--What's In a Name?, SEATTLE
POST-INTELLIGENCER, Oct. 15, 1996, at B2; Jim Simon, Upset Victor is
Settling Into Court--'He's Not the Oddball I Thought He
Was,' SEATTLE TIMES, Aug. 25, 1991, at B1. And in 2006,
highly-regarded Los Angeles Superior Court judge Dzintra Janavs was
ousted by a "bagel-shop owner who only recently reactivated her
license to practice law." Andrew Cohen, Bagels on the Bench a Bad
Idea, WASH. POST, June 13, 2006,
http://blog.washingtonpost.com/benchconference/2006/06/
bagels_on_the_bench_a_bad_idea.html; see also Joel Achenbach, Juris
Impuris, MIAMI HERALD TROPIC, Aug. 28, 1988, available at
http://www.tropicfan.com/juris%20impuris%20by%20joel%20achenbach.htm
(discussing political consultants in Miami who tell candidates to change
their names in order to win elections, and consultants who line up
"floaters" with good names to run against judges who decline
to hire the consultants).

One observer has noted that voters like "color" names,
such as Green, Brown, White, and Black. See Rick Casey, How judge
candidates waste money, HOUS. CHRON., Oct. 24, 2008, at B1.
("'People seem to like colors,' Harris County
[Democratic] chairman Gerry Birnberg told me.... Sure enough, [after
party affiliation the] second most important factor in Harris County for
putting people in black robes seems to be whether they had the foresight
to acquire--through birth, marriage or legal action--a last name that
appears on a palette.").

Of course, the same problem exists in partisan states that choose
judicial nominees in party primaries. For example, in 1976 an unknown
Houston lawyer, Don Yarbrough, defeated a well-regarded appellate judge
in the Democratic primary for an open seat on the Texas Supreme Court
when voters confused him with Don Yarborough, a three-time gubernatorial
candidate. See Herbert M. Kritzer, Law Is the Mere Continuation of
Politics by Different Means: American Judicial Selection in the
Twenty-First Century, 56 DEPAUL L. REV. 423, 435-36 (2007). Justice
Yarbrough resigned in July 1977 after facing numerous ethics charges and
being caught on tape plotting to kill a former business associate. See
id. at 436; see also Anthony Champagne, Coming to a Judicial Election
Near You: The New Era in Texas Judicial Elections, 43 S. TEX. L. REV. 9,
9-10 (2001).

(36.) See Berkson, supra note 15, at 177. Six years earlier,
California voters adopted a system of gubernatorial appointments,
confirmation by a commission, and retention elections for appellate
judges. See DEBORAH KILEY, MERIT SELECTION OF CALIFORNIA JUDGES 4-5
(1999), available at www.mcgeorge.edu/documents/centers/govenment/
ccglp_pubs_merit_selection_pdf.pdf. Because the governor did not choose
names from a commission-screened list, however, credit for initiating
"merit selection" is generally given to Missouri.

(41.) See id. at 1092. Illinois and New Mexico's merit
selection systems require a supermajority for retention. See INST. FOR
THE ADVANCEMENT OF THE AM. LEGAL SYS., SHARED EXPECTATIONS: JUDICIAL
ACCOUNTABILITY IN CONTEXT 11 n.19 (2006), available at
http://www.du.edu/legalinstitute/pubs/sharedexpectations.pdf.

(45.) See, e.g., Henry R. Glick, The Promise and the Performance of
the Missouri Plan: Judicial Selection in the Fifty States, 32 U. MIAMI
L. REV. 509, 521 (1978) (describing the means governors frequently use
to control the appointment process for their own political ends).

(46.) See id. at 528 (noting that bar associations'
representatives on nominating commissions thwart the reform of the
judicial selection process because they are "preoccupied with the
decisional propensities of potential judges").

(47.) See Jeffrey W. Stempel, Malignant Democracy: Core Fallacies
Underlying Election of the Judiciary, 4 NEV. L.J. 35, 56-57 (2003)
(noting that reform of judicial selection is unlikely because
"[t]oo many vested interests like the current system[,] and they
are in a strong position to thwart any movement toward merit selection
by appointment").

(48.) American Judicature Society, Voters in Four Jurisdictions Opt
for Merit Selection on November 4, www.ajs.org/selection/sel_voters.asp
[hereinafter American Judicature Society, Voters] (last visited Dec. 14,
2008) (noting that decision of a fifth Missouri county to adopt merit
selection for local judges in 2008 "marks the first time since 1985
that a jurisdiction has moved from contestable elections to merit
selection"). Prior to that, voters had rejected merit selection in
Ohio in 1987 and had declined to extend merit selection from appellate
to trial courts in Florida in 2000 and South Dakota in 2004. See
American Judicature Society, Chronology of Successful and Unsuccessful
Merit Selection Ballot Initiatives,
http://www.judicialselection.us/uploads/
documents/merit_selection_chronology_1e233BS002692.pdf (last visited
Dec. 14, 2008).

(52.) See George W. Soule, The Threats of Partisanship to
Minnesota's Judicial Elections, 34 WM. MITCHELL L. REV. 701, 726
(2008). Wisconsin offers limited public financing for judicial and other
races, but candidates capable of raising substantial campaign funds have
rejected public financing and its accompanying spending restrictions.
See id. at 726-27.

(55.) See William C. Cleveland III, Money and Judicial Elections,
68 DEF. COUNS. J. 393, 393 (2001) (citing various studies, including an
examination of Louisiana district court elections finding that "70
percent of contested elections are won by the candidate who spent the
most money"; an Ohio citizens' committee finding "that
nine of 10 Ohioans believe that judicial decisions are affected by
political contributions"; and a Pennsylvania commission's
findings that "59 percent of Pennsylvania voters felt that too much
money was spent on judicial campaigns, ... 88 percent thought
judges' decisions were influenced at least some of the time by
campaign contributions, ... [and] 37 percent thought it was most or all
of the time").

(59.) See Anthony Champagne, Tort Reform and Judicial Selection, 38
LOY. L.A.L. REV. 1483, 1484-85 (2005) (noting that the intense
politicization of Alabama's supreme court elections following the
Court's partial invalidation of Alabama's tort reform
legislation led one scholar to conclude that these elections had become
"a battleground between businesses and those that sue them"
(internal quotation marks omitted)); see also Glenn C. Noe, Comment,
Alabama Judicial Selection Reform: A Skunk in Tort Hell, 28 CUMB. L.
REV. 215, 232-33 (1998) (noting that, following a ten million dollar
campaign, three justices of the California Supreme Court were defeated
in their 1986 retention elections as a result of public response to the
justices' position on the constitutionality of the death penalty).

(60.) Anthony Champagne, Interest Groups and Judicial Elections, 34
LOY. L.A.L. REV. 1391, 1398-99 (2001) (discussing U.S. Chamber of
Commerce's efforts to support election of pro-business judges in
Alabama, Illinois, Michigan, Mississippi, and Ohio by both direct
campaign contributions and issue advertising). In the 2000 election
cycle, for example, "[private] individuals constitute[d] the
largest source of campaign money in congressional elections, giving
approximately $567.7 million ... to all primary and general election
candidates in the ... House and Senate elections." Paul S. Herrnson
& Kelly D. Patterson, Financing the 2000 Congressional Elections, in
FINANCING THE 2000 ELECTION 106, 121 (David G. Magleby ed., 2002). By
contrast, in that same year, state supreme court candidates raised $45.6
million for their campaigns, with lawyers, business interests, and
political parties contributing more than half of all campaign funds. See
Phyllis Williams Kotey, Public Financing for NonPartisan Judicial
Campaigns: Protecting Judicial Independence While Ensuring Judicial
Impartiality, 38 AKRON L. REV. 597, 616 & nn.162-63 (2005).

(61.) See Roy Schotland, New Challenges to States' Judicial
Selection, supra note 54, at 1080 ("The sea change came in 2000,
when judicial candidates' campaign spending soared and interest
groups were dimensionally more active than ever before, even dominating
some races.").

(62.) See, e.g., DEBORAH GOLDBERG ET AL., THE NEW POLITICS OF
JUDICIAL ELECTIONS: HOW 2000 WAS A WATERSHED YEAR FOR BIG MONEY, SPECIAL
INTEREST PRESSURE, AND TV ADVERTISING 1N STATE SUPREME COURT CAMPAIGNS
17, 21-24 (2002), available at
https://www.policyarchive.org/bistream/handle/10207/5936/20020201.pdf
(reproducing negative storyboards from television ads funded by
independent groups); see also Stuart Banner, Note, Disqualifying Elected
Judges from Cases Involving Campaign Contributors, 40 STAN. L. REV. 449,
476-78 (1988) (suggesting that imposing limits on contribution size may
give an advantage to wealthy candidates because candidates can still
fund their own campaigns, and that absolute prohibitions against large
contributions may prevent well-qualified but unknown candidates from
getting recognition).

(63.) See B. Michael Dann & Randall M. Hansen, Judicial
Retention Elections, 34 LOY. L.A.L. REV. 1429, 1431-37 (2001)
(describing judicial election campaigns in Tennessee, California, and
Nebraska in which judges lost their seats on the court when they were
portrayed as being "soft on crime"); see also DEBORAH GOLDBERG
ET AL., THE NEW POLITICS OF JUDICIAL ELECTIONS 2004: HOW SPECIAL
INTEREST PRESSURE ON OUR COURTS HAS REACHED A "TIPPING
POINT"--AND HOW TO KEEP OUR COURTS FAIR AND IMPARTIAL 10 (Jesse
Rutledge, ed. 2004), available at http://brennan.3cdn.net/
dd00e9b682e3ca2f17_xdm6io68k.pdf ("[In 2004 i]n Illinois, the
Justice For All Political Action Committee, a trial lawyer and labor
group, ran an ad criticizing Republican Judge Lloyd Karmeier as
'lenient' because he 'gave probation to kidnappers who
tortured and nearly beat a 92-year-old grandmother to
death.'").

(64.) Randall T. Shepard, Chief Justice of Indiana, Panel
Discussion at the Georgetown University Law Center & American Law
Institute's Fair and Independent Courts: A Conference on the State
of the Judiciary (Sept. 29, 2006), available at http://www.
law.georgetown.edu/news/documents/CoJ092906-panel5.pdf.

(70.) The ABA Model Code was promulgated in 1972. Soon, the
judicial discipline systems in most states became primarily responsible
for enforcing the code provisions in their respective jurisdictions. See
Adam R. Long, Keeping Mud Off the Bench: The First Amendment and the
Regulation of Candidates' False or Misleading Statements in
Judicial Elections, 51 DUKE L.J. 787, 795-96 (2001).

(71.) See MODEL CODE OF JUD. CONDUCT (2007).

(72.) See id. Canon 4 (setting restrictions on the speech and
conduct of judges and judicial candidates).

(73.) See, e.g., WIS. SUP. CT. RULE 20:8.2(a)-(b) (providing that a
"lawyer shall not make a statement that the lawyer knows to be
false or with reckless disregard as to its truth or falsity concerning
the qualifications or integrity of a judge ... or of a candidate for
election or appointment to judicial or legal office," and affirming
that any "lawyer who is a candidate for judicial office shall
comply with the applicable provisions in the code of judicial
conduct").

(83.) See Alan B. Morrison, Judges and Politics: What To Do and Not
Do About Some Inevitable Problems, 28 JUST. SYS. J. 283, 286 (2007)
(noting that "[v]irtually every state except Texas recognizes the
special problem of a sitting judge or candidate for judicial office
making a direct request request for a contribution to a
supporter.")

(90.) See Owen G. Abbe & Paul S. Herrnson, Campaigning For
Judge: Noisier, Nastier?, CAMPAIGNS & ELECTIONS, Apr. 1, 2002, at 43
("[A] growing number of judicial elections are competitive and
involve substantial campaign spending and significant campaign activity
by outside groups .... [M]ore and more judges are turning to political
consultants for help with their campaigns," and in turn, interest
groups targeting judges hire staff including media consultants,
pollsters, and researchers.).

(91.) See Sandra Day O'Connor, Letter to Conference
Participants, Sandra Day O'Connor Project on the State of the
Judiciary, 2008 Conference: Our Courts and Corporate Citizenship (on
file with author) ("The perception, or the reality, that justice
can be 'bought' is bad for the legitimacy of our courts, and
bad for democracy."); see also Owen G. Abbe & Patti S. Hermson,
How Judicial Election Campaigns Have Changed, 85 JUDICATURE 286, 287
(2002) ("[J]udicial elections can no longer be characterized as
inexpensive, quiet, uncompetitive affairs."). The authors surveyed
261 judicial candidates from twenty-nine states, concluding that
"judicial elections are even more competitive than elections for
the U.S. House of Representatives and most state legislatures." Id.
at 289.

(92.) See James Michael Scheppele, Note, Are We Turning Judges into
Politicians?, 38 LOY. L.A.L. REV. 1517, 1528 (2005) ("By
contributing to a judge's campaign, persons and entities are
essentially 'lobbying' the judiciary in a fashion similar to
lobbying the legislature.").

(93.) See Michael Grabell, Democrats short on courtroom
recognition: But new judges may have more skills than they're given
credit for, DALLAS MORNING NEWS, Nov. 9, 2006, at 18A; Michael Grabell
& Gromer Jeffers, Jr., Dozens of judges lose seats in Democratic
tidal wave: Victories reflect general shift as GOP loses grip in Dallas
County, DALLAS MORNING NEWS, Nov. 8, 2006, at 15A; see also Stephen B.
Bright & Patrick J. Keenan, Judges and the Politics of Death:
Deciding Between the Bill of Rights and the Next Election in Capital
Cases, 75 B.U.L. REV. 759, 780 (1995) ("Republican straight-ticket
voting [in 1994] contributed to the defeat of nineteen Democratic judges
and a Republican sweep of all but one of the forty-two contested races
for countywide judgeships in Harris County, Texas, which includes
Houston.").

(94.) In 2008, Democrats won twenty-two of twenty-six countywide
contested judicial races in Harris County, Texas. Despite expensive
campaigns mounted by individual candidates, party organizations, and
independent groups, all evidence is that these efforts made no impact.
The four Republicans who won shared one common link: Their opponents had
unusual names. The defeated were Mekisha Murray, Goodwille Pierre,
Andreas Pereira, and Ashish Mahendru. See Mary Flood & Brian Rogers,
Election defeat stuns incumbent Harris Co. judges, HOUS. CHRON., Nov. 6,
2008, http://www.chron.com/disp/story.mpl/hotstories/6097733.html.

(95.) Of the 3912 elections between the years 1964 and 1994 in the
ten states that used the retention election system, only fifty judges
were defeated. Twenty-eight of those defeats occurred in Illinois, which
required a judge to get 60% of the vote to remain on the bench. Dann
& Hansen, supra note 63, at 1430 (citing Larry Aspin & William
K. Hall, Thirty Years of Judicial Retention Elections: An Update, 37
SOC. SCI. J. 1, 3, 8-10 (2000)).

(96.) Wyoming's Walter Urbigkit lost following concerns that
he was too lax on criminals. See CONSTITUTIONAL POLITICS IN THE STATES:
CONTEMPORARY CONTROVERSIES AND HISTORICAL PATTERNS 169 (G. Alan Tarred.,
1996). Similarly, California's Chief Justice Rose Bird, Justice
Cruz Reynoso, and Justice Joseph Grodin were defeated in a 1986
retention election after being portrayed as soft on crime. See Dann
& Hansen, supra note 63, at 1431-32.

(97.) See Patrick Emery Longan, Judicial Professionalism in a New
Era of Judicial Selection, 56 MERCER L. REV. 913, 915-17 (2005)
(attributing Tennessee Justice Penny White's defeat to her failure
to impose the death penalty in a case involving the rape and murder of
an elderly woman).

(98.) See Laura Parker, Judges pay when their salaries tied to
lawmakers': Raises entangled in political issues, re-election
jitters, USA TODAY, Sept. 24, 2007, at 4A (noting that Pennsylvania
Justice Russell Nigro lost his seat due to public outcry following an
unpopular decision to raise the salaries of various government
officials, including Nigro's).

(102.) See Anthony Champagne & Kyle Cheek The Cycle of Judicial
Elections: Texas as a Case Study, 29 FORDHAM URB. L.J. 907, 931-32
(2002) (On December 6, 1987, "the national television news program
60 Minutes featured the Texas Supreme Court in a story titled 'Is
Justice for Sale?' The program questioned whether Texas judges were
being exposed to undue influence by deep pocket interests contributing
heavily to candidates friendly to their views. Current Chief Justice Tom
Phillips concedes that the story 'had a tremendous impact on Texas
judicial politics,' while his predecessor, John Hill, has argued
that the 'news reports only reflect a growing belief among many
citizens of Texas that [the] state's legal system no longer
dispenses evenhanded justice.'").

(103.) See Offutt v. United States, 348 U.S. 11, 14 (1954)
("[J]ustice must satisfy the appearance of justice.').

(104.) Compare AM. TORT REFORM FOUND., JUDICIAL HELLHOLES 2 (2007),
available at http://www.atra.org/reports/hellholes/report.pdf
("Trial lawyer contributions make up a disproportionate amount of
donations to locally elected judges. A poll found that 46 percent of
judges said donations influenced their judicial decisions."), with
EMILY GOTTLIEB, CHAMBER OF HORRORS: THE HIJACKING OF THE 2004 ELECTIONS
BY THE U.S. CHAMBER OF COMMERCE 10, available at
http://www.centerjd.org/ archives/studies/ChamberWhitePaper.pdf
("Despite fundamental constitutional concerns, corporate front
groups like the Chamber's Institute for Legal Reform (ILR) have
broadened their efforts to strong-arm judges into voting their way and
tried to defeat judges who don't.").

(106.) In Texas, about two thirds of all judicial elections since
1980 have been unopposed. See Elizabeth Ames Jones, Editorial, Remove
the partisanship, money from judicial races, SAN ANTONIO EXPRESS-NEWS,
Nov. 9, 2003, at 5H (noting that 65% of Texas judges run in unopposed
elections).

(107.) See id. ("[A]bout [fifty] percent of all [Texas
district and appellate] judges are initially appointed by the
governor.... [Twenty] percent of sitting judges have never had an
opponent.").

(108.) Editorial, Three Gavels for Tennessee, WALL ST. J., May 27,
2008, at A20 (noting that Tennessee's decision to allow its merit
selection system to expire "marked the first time a merit selection
plan ha[d] been ousted in any state").

(109.) See id. (noting that no other states have done away with
merit selection).

(110.) See American Judicature Society, Voters, supra note 48
(noting that in 2008 Greene County became the fifth Missouri county to
adopt judicial merit selection).

(112.) See Thomas R. Phillips, Keynote Address: Electoral
Accountability and Judicial Independence, 64 OHIO ST. L.J. 137, 146-47
(2003) (noting that public financing, at least for state supreme court
elections, has received strong public support as reflected by polling
data).

(113.) See, e.g., Charles Gardner Geyh, Publicly Financed Judicial
Elections: An Overview, 34 LOY. L.A.L. REV. 1467, 1478-80 (2001)
(discussing the hurdles to adoption of a public financing system);
Editorial, Judges and their donors, CHI. TRIB., Mar. 19, 2007, at 16
(noting that public financing does not eliminate the influence of trial
lawyers and business organizations, which can "still spend as much
as they want airing their own ads").

(114.) See JAMES SAMPLE ET AL., BRENNAN CTR. FOR JUSTICE, FAIR
COURTS: SETTING RECUSAL STANDARDS 11 (2008),
http://www.brennancenter.org/
content/resource/-fair_courts_setting_recusal_standards ("In a 2002
written survey of 2,428 state lower, appellate, and supreme court
judges, over a quarter (26%) of the respondents said they believe
campaign contributions have at least 'some influence' on
judges' decisions and nearly half (46%) said they believe
contributions have at least 'a little influence.' The survey
also revealed that 56% of state court judges believe 'judges should
be prohibited from presiding over and ruling in cases when one of the
sides has given money to their campaign.'" (quoting GREENBERG
QUINLAN ROSNER RESEARCH & AMERICAN VIEWPOINT, JUSTICE AT
STAKE--STATE JUDGES FREQUENCY QUESTIONNAIRE 5, 11 (2002),
http://www.gqrr.com/articles/1617/1411_JAS_judges.pdf.)).

(115.) See George D. Brown, Political Judges and Popular Justice: A
Conservative Victory or a Conservative Dilemma?, 49 WM. & MARY L.
REV. 1543, 1592 (2008) ("Neutrality in the conduct of a trial
requires a decision maker who is not subject to pressure from the
parties or, afortiori, from the public at large. There is something
contrary to this ideal in the notion of an adjudicator campaigning on
how he or she is going to adjudicate. The existence of political
'debts,' especially campaign contributions, 'owed'
to parties who then litigate before the debtor raises the same
concerns." (footnotes omitted)). Professor Brown also raises the
possibility that as a result, "federal court distrust of
politicized state courts will affect relations between the two
systems." Id.

(116.) See id.

(117.) Connecticut, Delaware, Hawaii, Maine, Massachusetts, New
Hampshire, New Jersey, Rhode Island, South Carolina, Vermont, and
Virginia employ appointive judicial selection methods. See Roy A.
Schotland, Judicial Elections, in GUIDE TO POLITICAL CAMPAIGNS IN
AMERICA 391-92 (Paul S. Herrnson et al. eds., 2005) ("Thirty-nine
states have judicial elections, and eleven states are strictly
appointive. In twenty states, all or some judges run in nonpartisan
elections; in sixteen all or some run in partisan elections; and in
nineteen all or some face 'retention' elections in which the
voters either keep or fire an incumbent judge." (citation
omitted)).

(119.) For example, presidential candidates use barely-disguised
code words in telling voters what kind of judges they will appoint. See,
e.g., David G. Savage, John McCain: Two visions of the Supreme Court,
L.A. TIMES, May 19, 2008, at A8 (quoting both McCain and Obama
discussing "activist judges," McCain discussing the
"clear meanings of the Constitution," and Obama discussing
judges' "empathy"). Both sides of the political spectrum
have created cottage industries that raise millions of dollars to
support or oppose nominees for the Supreme Court and even some courts of
appeals. See Debra Rosenberg, Bush's Choice: His judicial record is
limited, his credentials unquestioned. That makes John G. Roberts a
tough target., NEWSWEEK, July 20, 2005,
http://www.newsweek.com/id/50355/output/print.

(120.) George F. Will, The Tangle of Egos and Rules, NEWSWEEK, July
26, 1993, at 60.

(122.) See generally Daniel E. Witte & Paul T. Mero, Removing
Classrooms from the Battlefield: Liberty, Paternalism, and the
Redemptive Promise of Educational Choice, 2008 BYU L. REV. 377, 405-06
(2008) (discussing a recent California Court of Appeals decision which
held that parents do not have a constitutional right to home school
their children and that parents who do home school their children may be
guilty of a criminal infraction (citing In re Rachel L., 73 Cal. Rptr.
3d 77 (Ct. App. 2008))). Note that In re Rachel L. was superseded by a
grant of rehearing, and was reversed in part by Jonathan L. v. Superior
Court, 81 Cal. Rptr. 3d 571, (Ct. App. 2008).

(123.) See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171
(2005) (holding that Title IX, which prohibits sex discrimination in
schools, provided a cause of action for retaliation to a male high
school girls' basketball coach who received negative work
evaluations and was ultimately removed after complaining that his team
was not receiving equal funding).

(125.) See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 316
(2000) (holding a Texas high school's tradition of sanctioning
student-led prayer at football games unconstitutional); Bush v. Holmes,
919 So. 2d 392, 415 (Fla. 2006) (Bell, J., dissenting) (rejecting the
Florida Supreme Court's holding that the public school system
"is the exclusive means set out in the constitution for the
Legislature to make adequate provision for the education of
children," because such an exclusivity requirement is neither
expressed in the constitution nor necessarily implied (internal
quotation marks omitted)).